Last week, Illinois Governor Pat Quinn signed legislation creating the Illinois Torture Inquiry and Relief Commission, Public Act 096-0223. The creation of this commission, sponsored by Illinois State Senator Kwame Raoul, came about as a direct response to the twenty-year period of police torture of African American men under Commander Jon Burge. Any attempt to force the criminal justice system to come to terms with the Burge torture era and its human causalities (some of whom still linger in Illinois prisons for crimes they may not have committed) certainly seems like a necessary and positive development in the ongoing effort to fully investigate the twenty years of torture by Commander John Burge. According to one source this legislation gives new hope for approximately a dozen or more alleged victims that exhausted their remedies in the court system. This Commission will be empowered to send their findings to Chief Judge Timothy Evans in the hopes obtaining new hearings for victims, some of which have no other recourse left to rectify what might be a grave injustice.

The fact that this legislation may prove beneficial to possible victims with no recourse left in the courts is a significant move forward and a major reason to support this legislation. What is not going to be gained from this legislation is a complete understanding of what happened through this 20-year saga, who is responsible, and who benefited politically from the actions of Jon Burge. We also will not gain a more detailed understanding of why the accountability mechanisms within the criminal justice system failed to catch on to Jon Burge for almost 20 years. How are we not going to repeat the same mistakes, maybe we already have, if we do not have a fundamental understanding of how and why the mistakes that were made occurred? There were political benefits to the actions of Burge and his men and those that benefited and how they benefited must be flushed out.

An alternative model that has been used worldwide is a Truth Commission model. This is where victims and perpetrators of violence are brought forward to give testimony about what happened. The goals of this type of inquiry are to learn what social factors led to the acts being committed and what measures can a society take to prevent a repeat of their past misdeeds. This type of inquiry would allow the criminal justice agencies involved to learn in detail about their role, either knowingly or unknowingly, in the torture of countless African American men in Chicago. The agencies would also learn about what steps they could have taken to prevent or mitigate the ramifications of the actions of Jon Burge and his men.

Other audiences could benefit from the results of a Truth Commission – I highlight three here:

Policy makers could learn about how their oversight functions failed and could rework current ones to further prevent a repeat of these actions.

The media in Chicago, with the exception of John Conroy at the Chicago Reader, completely missed this story. A Truth Commission would flush out facts that could be compared to past reporting to show where improvements need to be made.

The public’s failure to get motivated about this story led to local political leaders and criminal justice officials ignoring Burge’s actions. Any final report would clearly show how public inaction and poor media coverage played a significant role in the long tenure of Jon Burge on the Chicago Police force.

Like any legislation that goes through a political process to become law, there are flaws in this legislation. Below I highlight specific flaws that are in the legislation.

Section 40. (a) “The Commission may informally screen and dismiss a case summarily at its discretion.”

Really? How do they intend to be able to summarily dismiss a case without any investigation? Under what criteria are they going to operate? Are they going to employ any information technologies that allow the Commission to examine each case both independently and as part of a patterns and practices investigation? It might be that what seemed totally unrealistic at an early point in the Commission’s operations now looks differently if examined in the context of a pattern and practice investigation. This clause certainly seems like the Commission, no matter how well staffed and intentioned, will be empowered to dismiss claims without even conducting a preliminary investigation. Also the wording of this clause allows the Commission itself to determine the process and not the legislators who drafted and passed this law.

Section 35 (1) To establish the criteria and screening process to be used to determine which cases shall be accepted for review.

This clause allows the Commission to determine under what guidelines they will operate and screen cases. The legislature should have used their powers to detail how the Commission will operate and under what criteria cases will be examined. This clause allows those appointed to affect the operations of this Commission to a much higher degree than should be allowed. This leaves the legislative intent to be interrupted by those on the Commission rather than being spelled out in the legislation. From reading this legislation, we are unable to determine with any specificity whether or not each individual case will be examined solely on its merits or if the Commission will engage in a patterns and practices investigation.

Section 45 (C) If 5 or more of the 8 voting members of the Commission conclude by a preponderance of the evidence that there is sufficient evidence of torture to merit judicial review, the case shall be referred to the Chief Judge of the Circuit Court of Cook County by filing with the clerk of court the opinion of the Commission with supporting findings of fact, as well as the record in support of such opinion, with service on the State’s Attorney in non-capital cases and service on both the State’s Attorney and Attorney General in capital cases.

Can anyone tell me why anyone interested in setting up a Commission that is supposed to be a truth seeking vehicle would allow an even number of voting members? This clause sets up a situation where there is the possibility of a tie vote. Of course, a tie vote goes against the alleged victim. Also of interest in this clause, the Commission sends cases in which they believe that there is evidence of torture to the Cook County Chief Judge. The problem with this process is that all of the cases in question have already been tried through Cook County Criminal Court and their torture allegations have been rejected. Why send them once again to a court system that has disregarded their claims as least once, if not more times. To remove any appearance of impropriety, the cases should be sent to a new court which itself is not implicated in the twenty years of accusations.

Section (45) (a) At the completion of a formal inquiry, all relevant evidence shall be presented to the full Commission. As part of its proceedings, the Commission may conduct hearings. The determination as to whether to conduct hearings is solely in the discretion of the Commission. Any hearing held in accordance with this Section shall be a public hearing and shall be held subject to the Commission’s rules of operation, and conducted pursuant to the Open Meetings Act.

This clause allows the Commission to decide without any requirements by the legislature if and when they will conduct public hearings. Once again, this is not the mark of a Commission that is being set up to forthrightly address the horrible saga of the Burge era. Transparency should not be left up to the Commission itself but be mandated by the legislature. Unfortunately, in typical Chicago “reform” style, the announcement of public hearings and the online posting of investigations and findings have been left to the whims of a politically appointed commission. Conclusion: There is already more than sufficient evidence within internal Chicago Police Department investigations, federal civil suits, and the Cook County Special Prosecutor’s report to make an informed decision that torture has occurred in many of these cases. With the creation of the Illinois Torture Commission, there is a new and potentially promising opportunity for justice for men that might be languishing away in prison either innocent of the crimes they committed or in prison as the result of a tortured confession. However, further benefits for the alleged victims and multiple other audiences could have been realized if this Commission was set up as Truth Commission with the intention of conducting a patterns and practices type of investigation of the entire 20 year saga.